May 28, 2023

The standard to review the Constitution

The framing of the Constitution of a State is a capital political fact and not a juridical act. No court or other authority in the State under the Constitution can, therefore, determine the primordial question whether the Constitution has been lawfully framed according to any standards. Even if a Constitution is framed under violence, rebellion or coercion, it stands outside the whole area of law, jurisprudence and justiciability.

The basic principle of constitutional jurisprudence is that the Constitution is the supreme law of the land, even supreme above the law and itself governing all other laws. But this principle is not applicable to an amendment of the Constitution. The Constitution can be amended only in accordance with the provisions thereof by the authority empowered to do so in accordance with the procedure laid down therein. The validity of a constitutional amendment can, therefore, be challenged on the ground that it is ultra vires.

The interpretation of a Constitution involves more than a passing interest concerning the actual litigants and being a pronouncement of the Courts on the government and administration, has a more general and far-reaching consequence.

The rules of the interpretation of the Constitution have to take into consideration the problems of government, structure of a State, dynamism in operation, caution about checks and balances, not ordinarily called for in the interpretation of statutes.[1]

A Constitution stands on certain fundamental principles which are its structural pillars and if those pillars are demolished or damaged, the whole constitutional edifice may fall down. The metaphor of a living Constitution is usually used in its interpretive meaning i.e., that the language of the document should evolve through judicial decisions according to the changing environment of society.

A Constitution’s amendment process provides another mechanism for such evolution, as a ‘built-in provision for growth’.

Yaniv Roznai[2] in his thesis has referred to Water Murphy who argues:

“Thus an “amendment” corrects or modifies the system without fundamentally changing its nature: An “amendment” operates within the theoretical parameters of the existing Constitution. A proposal to transform a central aspect of the compact to create another kind of system – for example, to change a constitutional democracy into an authoritarian state … – would not be an amendment at all, but a re-creation of both the covenant and its people. That deed would lie outside the authority of any set of governmental bodies, for all are creatures of the people’s agreement.”


While considering the appropriate standards of review of the constitutional amendments vis-à-vis unamenable principles, Yaniv Roznai has suggested three different levels of standards:

1. Minimal Effect Standard:

The first option is the Minimal Effect Standard. This is the most stringent standard of the judicial review of amendments. According to this standard, any violation or infringement of an unamendable principle is prohibited no matter how severe the intensity of the infringement is, including amendments that have only a minimal effect on the protected principles.

On the one hand, one may claim that the importance of the protected unamendable principles – as pillars of the constitution – necessitates the most stringent protection. If the aim of unamendability is to provide for hermetic protection of a certain set of values or institutions, then any violation of these principles ought to give rise to grounds for judicial intervention.

On the other hand, such a standard would not only bestow great power to the courts, but also would place wide – perhaps too wide – restrictions on the ability to amend the constitution. The theory of unamendability should not be construed as a severe barrier to change. It should be construed as a mechanism enabling constitutional progress, permitting certain flexibility by allowing constitutional amendments, while simultaneously shielding certain core features of the constitution from amendment, thereby preserving the constitutional identity.

2. Disproportionate Violation Standard  

The intermediate standard of review is the Disproportionate Violation Standard. It is an examination of the proportionality of the violation. The principle of proportionality is nowadays becoming an almost universal doctrine in constitutional adjudication.

Proportionality generally requires that a violation of a constitutional right has a ‘proper purpose;’ that there is a rational connection between the violation and that purpose; that the law is narrowly tailored to achieve that purpose; and that the requirements of the proportionality stricto (balancing) test are met. A disproportionate violation of a constitutional right would be considered unconstitutional and thus void. This standard emphasises the balancing of conflicting interests.

3. Fundamental Abandonment Standard

Fundamental Abandonment Standard is the lowest level of scrutiny. According to this standard, only an extraordinary infringement of unamendable principles, one that changes and ‘fundamentally abandons’ them, would allow judicial annulment of constitutional amendments. This seems to be the approach taken by the German Constitutional Court.

Constitutional Chances should not be Constitutional Metamorphosis

In other words, constitutional changes should not be tantamount to constitutional metamorphosis. Conversely, one should not confuse constitutional preservation with constitutional stagnation. As Joseph Raz writes:

“The law of the constitution lies as much in the interpretive decisions of the courts as in the original document that they interpret … But … it is the same constitution. It is still the constitution adopted two hundred years ago, just as a person who lives in an eighteenth-century house lives in a house built two hundred years ago. His house had been repaired, added to, and changed many times since. But it is still the same house and so is the constitution.

A person may, of course, object to redecorating the house or to changing its windows, saying that it would not be the same. In that sense it is true that an old constitution is not the same as a new constitution, just as an old person is not the same as the same person when young. Sameness in that sense is not the sameness of identity … It is the sameness of all the intrinsic properties of the object. … The point of my coda is to warn against confusing change with loss of identity and against the spurious arguments it breeds. Dispelling errors is all that a general theory of the constitution can aspire to achieve.”


Judgment of Justice J.B. Pardiwala in Janhit Abhiyan v. Union of India (2023)

[1] Mukharji ‘The New Jurisprudence’, p. 106

[2] Unconstitutional Constitutional Amendments : A Study of the Nature and Limits of Constitutional Amendment Powers”, Yaniv Roznai, Thesis, February, 2014